Leela Pathrabe vs Ministry Of Railways & Ors.

By Hon’ble Ms. Manju Pandey, Member (A):-

Heard Shri A D Singh learned counsel for the applicant and Shri Bablu Singh, learned counsel for the respondents.

This Original Application is filed under section 19 of the Administrative Tribunal Act, 1985, seeking following reliefs:-

The Brief facts of the case as stated by the applicant are that the applicant, Smt. Leela Pathrabe, is the wife of Shri K.B. (Krishna Bitthal) Pathrabe, who was appointed as Cashier in the Railway Department on 01.07.1983 in the pay scale of Rs.1600–2660. Shri K.B. Pathrabe suddenly went missing on 06.12.1999, whereupon the applicant approached the police authorities for registration of an FIR and, upon failure of the police to take action, moved an application under Section 156(3) Cr.P.C. before the competent court, pursuant to which FIR No.342/2001 was registered at Police Station Kotwali Sadar, Farrukhabad on 27.10.2001 under Section 364 IPC; however, after investigation, the police submitted Final Report No.99/2001 dated 23.12.2001, stating that the whereabouts of Shri K.B. Pathrabe could not be ascertained and that the allegation of kidnapping was not established. Meanwhile, despite the Railway Administration having been informed about his disappearance, disciplinary proceedings continued against him, and an Inquiry Officer, Shri Raj Narayan Gupta, recorded that the inquiry could not be completed due to the disappearance of the employee. The applicant repeatedly informed and approached the Railway authorities regarding her husband's disappearance and sought payment of admissible dues, pensionary benefits and compassionate appointment. Nevertheless, the Railway Administration passed an order dated 24.08.2004 removing Shri K.B. Pathrabe from service on the ground of unauthorized absence. Subsequently, during correspondence and inquiry, it was specifically observed that the Railway Administration had knowledge of the employee's disappearance prior to imposition of the penalty and that the procedure followed in the disciplinary proceedings was not in accordance with the prescribed rules; it was further opined that the order of removal dated 24.08.2004 might not be legally sustainable. The applicant thereafter made repeated representations and sought information under the Right to Information Act, 2005, including on 18.05.2007, 06.03.2008, 02.11.2015, 05.12.2015, 26.02.2016, 09.06.2016, 10.08.2016, 23.08.2016 and 02.11.2016, seeking reconsideration of the removal order, release of admissible dues and action in accordance with Railway Board instructions. The Railway authorities, however, failed to grant the applicant any effective relief. The applicant relies upon Railway Board instructions dated 22.08.1991 regarding cancellation of removal from service in genuine cases of missing employees and grant of consequential benefits to their families, as well as the Railway Board notification dated 21.01.1994 concerning settlement dues payable to eligible family members of Railway employees who have suddenly disappeared and whose whereabouts are not known. After pursuing the matter before the Railway authorities for several years, the applicant caused a legal notice dated 22.02.2018 to be issued through counsel, but no reply or effective relief was provided. Consequently, having remained without relief despite pursuing the matter since the disappearance of her husband in 1999 and despite placing voluminous records and documents before the authorities, the applicant has approached the Hon’ble Tribunal under Section 19 of the Administrative Tribunals Act, 1985, challenging the action of the respondents as illegal, arbitrary, irrational, discriminatory and contrary to the applicable rules, Railway Board instructions and the principles of natural justice. Hence this original application.

On the other hand, learned counsel for the respondents has filed the counter affidavit and stated that the husband of the applicant, Shri K.B. Pathrabe, was working as Sub-Divisional Treasurer, Farrukhabad, under the Cash and Pay Office, and while discharging his duties, certain financial irregularities were detected against him, including a shortage/misuse of Government funds amounting to Rs.55,509/-. Earlier, on 25.02.1999, a lapse involving Rs.17,073/- was detected during the audit conducted by the Divisional Audit Officer, Izzatnagar, pursuant to which Memorandum No. प्रमलेधि/इज्ज त/डी०ए०आर०/99 dated 08.04.1999 was issued, and prior thereto, in respect of irregularities relating to the year 1997, Memorandum No. प्रमलेधि/इज्ज त/डी०ए०आर०/98 dated 15.12.1998 had also been issued alleging non-deposit of Rs.7,512/- into Government funds and misuse thereof. Thereafter, a major charge-sheet/penalty memorandum No. प्रमलेधि/इज्ज त/डी०ए०आर०/99 dated 17.06.1999 was issued by the competent authority, namely the Divisional Accounts Officer/controlling authority, as the Cash and Pay work was under the Divisional Accounts Office, and Inquiry Officers were appointed from time to time as directed by the competent authority. The Inquiry Officer issued letters dated 26.03.1999, 09.04.1999, 18.04.1999 and 13.06.2000 requiring the employee to appear and participate in the inquiry, but he failed to appear. No explanation was received from him even after about one and a half months of issuance of the major charge-sheet, and consequently the Disciplinary Authority, vide letter No. प्रमलेधि/इज्ज त/डी०ए०आर०/99 dated 06.08.1999, called upon him to submit his explanation. The employee had also allegedly communicated by letter dated 17.11.2000 that he did not wish to continue in service; the said letter was received in the office on 21.11.2000 and a Speed Post communication was sent to the same address on 29.11.2000, which was returned undelivered. Shri Shatrughan Prasad, Inquiry Officer, in his report dated 07.03.2002, recorded that despite opportunities, the employee neither appeared personally nor appointed any Defence Assistant/representative and did not participate in the inquiry or submit any correspondence in his defence. Subsequently, on 26.11.2001, Shri Raj Narayan Gupta, Assistant Divisional Accounts Officer-II, Izzatnagar, was appointed as Inquiry Officer in place of Shri Shatrughan Prasad, and in his inquiry report dated 26.04.2004 he also recorded that the employee had neither appeared in the inquiry nor appointed any Defence Assistant and that the charges stood proved on the basis of the evidence available on record. The inquiry report dated 26.04.2004 was thereafter sent by registered post to the permanent address available in the employee's personal file on 08.07.2004, but the same was returned without acknowledgment. It is further submitted that, as per the departmental records, the employee had remained unauthorisedly absent from 21.08.1999 and had not furnished any information to the department regarding his whereabouts. Upon consideration of the inquiry proceedings and the proved charge of shortage/misuse of Government funds amounting to Rs.55,509/-, the Disciplinary Authority, in exercise of powers under the Railway Servants (Discipline and Appeal) Rules, 1968, particularly Rule 6(ii), passed the order dated 24.08.2004 removing the employee from Railway service; the said order was passed on account of the proved misconduct/financial irregularity and not on account of his alleged disappearance. The respondents accordingly submit that the applicant's husband was removed from service for the proved charge of misuse/embezzlement of Government funds and not merely for being missing, and therefore the benefits admissible under the applicable rules were confined to the permissible settlement dues, including PF and GIS, while compassionate appointment or compassionate allowance was not automatically admissible in the absence of an order by the competent authority. The applicant thereafter sought information and reconsideration of the matter through various representations and under the Right to Information Act, 2005, including communications relating to the departmental decision and appeal, and vide letter No. प्र /आर०टी०आई०/पी०सी०/14/07/442 dated 12.04.2008 she was informed that a decision in a DAR case could be taken only on an appeal preferred by the employee and that the information sought was not available within the scope of Section 2(f) of the RTI Act. It is further submitted that the applicant's challenge to the order dated 24.08.2004 has been raised after an unexplained delay of more than thirteen years and, therefore, the present Original Application is highly barred by limitation and is liable to be dismissed on this ground alone. The respondents further submit that the departmental proceedings were conducted by the competent authorities after providing opportunities to the employee, the charges of financial misconduct were duly proved on the basis of the inquiry record, and the order dated 24.08.2004 was passed in accordance with the applicable Railway Servants (Discipline and Appeal) Rules, 1968. Hence, the allegations that the employee was removed from service merely because he was missing, or that the order of removal was arbitrary, illegal or contrary to the applicable rules, are specifically denied, and the present Original Application, being devoid of merit as well as highly belated, is liable to be dismissed.

In reply, learned counsel for the applicant has filed rejoinder affidavit, wherein, it has specifically been mentioned that the defence taken by the respondents is misconceived, contrary to the record and liable to be rejected, as the alleged disciplinary proceedings against the applicant's husband, Shri K.B. Pathrabe, were not conducted in accordance with the Railway Servants (Discipline and Appeal) Rules, 1968 or the principles of natural justice. The work of the applicant's husband was under the Cash and Pay Office and, accordingly, a major penalty charge-sheet dated 17.06.1999 was issued by the competent authority alleging deficiency/misuse of Government funds amounting to Rs.55,509/-, but the respondents failed to appreciate that the applicant's husband had already become unwell and had been absent from duty from 21.08.1999, pursuant to the sick memo issued by the department, and thereafter disappeared on 06.12.1999/08.12.1999, as reflected in the police records/FIR. The respondents' reliance upon letters dated 26.03.1999, 09.04.1999, 18.04.1999 and 13.06.2000 is misplaced, particularly because the latter communication dated 13.06.2000 was issued after the applicant's husband's absence and disappearance and could not have been effectively served upon him. Likewise, the letter dated 06.08.1999 issued by the Disciplinary Authority was subsequent to his absence on account of sickness and was never duly served upon him. The alleged unsigned letter dated 17.11.2000, purportedly stating that the applicant's husband did not wish to continue in service, was never authenticated or verified by the Railway Administration before acting upon its contents; although the said letter was received in the office on 21.11.2000 and a Speed Post communication was allegedly sent to the address mentioned therein on 29.11.2000, the same was returned undelivered, which itself demonstrates that the applicant's husband was not available at the relevant time. The first Inquiry Officer, Shri Shatrughan Prasad, ADAO-II, Izzatnagar, had initially been nominated, but his nomination was subsequently cancelled by the competent authority vide order/communication dated 27.11.2001 as he was cited as a prosecution witness, and therefore the inquiry report dated 07.03.2002 submitted by him could not legally be relied upon; moreover, the said report was prepared after the applicant's husband had already disappeared and without affording him any effective opportunity of participation. Thereafter, Shri Raj Narayan Gupta, Assistant Divisional Accounts Officer-II, Izzatnagar, was appointed as Inquiry Officer on 26.11.2001, but he too conducted the inquiry in the absence of the applicant's husband and concluded in his report dated 26.04.2004 that the charged employee had neither appeared nor appointed a Defence Assistant, despite the admitted fact that the employee was missing and unavailable. The Inquiry Officer also failed to examine all the prosecution witnesses cited in the charge-sheet and instead examined a new witness, Shri Amba Prasad, Cashier; out of the three prosecution witnesses, only one was examined, and even the prosecution witness cited as Witness No.1 was not examined, thereby rendering the inquiry incomplete and contrary to the principles of natural justice and the provisions of the Railway Servants (Discipline and Appeal) Rules, 1968. The respondents' assertion that the applicant's husband deliberately failed to participate in the inquiry is therefore untenable, since the departmental record itself establishes that he had been absent due to sickness from 21.08.1999 and had thereafter disappeared, as reported in the police FIR dated 06/08.12.1999. The inquiry report dated 26.04.2004 was allegedly sent by registered post on 08.07.2004 to the permanent address available in the personal file, but the communication was returned undelivered; this circumstance cannot constitute proof of deliberate refusal or abandonment of service when the employee was admittedly missing. Further, the Railway Administration had knowledge of the employee's disappearance, as evidenced by the communication dated 30.04.2001 and the noting of the Cash Office, Gorakhpur dated 09.01.2007, yet the respondents proceeded to conclude the disciplinary proceedings without ensuring effective service or providing a meaningful opportunity of defence. Despite these serious procedural defects, the Disciplinary Authority passed the impugned removal order/NIP dated 24.08.2004 under the Railway Servants (Discipline and Appeal) Rules, 1968, treating the charge of shortage/misuse of Rs.55,509/- as proved. However, the applicant submits that the alleged charge was never lawfully proved because the inquiry was incomplete, material prosecution witnesses were not examined, the charged employee was not afforded an effective opportunity of defence, and the inquiry proceeded after his disappearance. The respondents' own Annexure-CR-1 dated 01.06.2007, issued by the Disciplinary Authority, Sr. Divisional Finance Manager, N.E. Railway, Izzatnagar, to the Dy. FA&CAO, Traffic, N.E. Railway, Gorakhpur, in response to the correspondence dated 20/30.05.2007, cannot cure these fundamental defects, particularly when the subsequent departmental clarification itself was based upon an incomplete consideration of the relevant facts. The earlier disciplinary matters relating to the alleged lapse of Rs.17,073/- detected on 25.02.1999 and Memorandum dated 08.04.1999, as well as the earlier memorandum dated 15.12.1998 concerning Rs.7,512/-, do not form the subject matter of the present proceedings and are wholly irrelevant to the validity of the impugned charge-sheet dated 17.06.1999 and removal order dated 24.08.2004. The respondents' contention that the applicant's husband was removed for embezzlement and not for disappearance is not disputed as a description of the impugned order; however, the applicant specifically challenges the legality of such removal on the ground that it was imposed without following the mandatory procedure and principles of natural justice after the employee had become unavailable due to sickness and disappearance. The applicant further submits that the Railway Administration's own records and subsequent correspondence demonstrate that the circumstances of the employee's disappearance were within its knowledge before the conclusion of the disciplinary proceedings, and therefore the administration ought to have acted in accordance with the applicable Railway Board instructions concerning missing employees rather than proceeding mechanically to impose the extreme penalty of removal. The applicant also relies upon the Railway Board instructions dated 22.08.1991 and 21.01.1994 concerning cases of genuine missing Railway employees and settlement of dues to eligible family members. It is further submitted that the respondents' reliance upon the communication dated 12.04.2008/22.04.2008, stating that a decision could be taken only upon an appeal by the employee, is misplaced because the employee was missing and had no effective opportunity to challenge the disciplinary proceedings or removal order. The applicant has also clarified that, contrary to the respondents' assertion, the admissible PF and GIS amounts have not been paid to her till date. The applicant had continuously pursued the matter before the Railway authorities and had submitted representations and RTI applications, and the delay in approaching this Hon'ble Tribunal was neither deliberate nor wilful but arose from the applicant's continued pursuit of the matter before the departmental authorities and the peculiar circumstances arising from her husband's disappearance. The respondents' objection regarding limitation therefore deserves to be considered in the light of the continuing denial of lawful benefits and the applicant's bona fide pursuit of remedies. In view of the aforesaid facts, particularly the employee's absence due to sickness from 21.08.1999, his disappearance on 06/08.12.1999, the unverified letter dated 17.11.2000, the cancellation of the nomination of Shri Shatrughan Prasad on 27.11.2001, the defective and incomplete inquiry conducted thereafter, the inquiry report dated 26.04.2004, the impugned removal order dated 24.08.2004 and the subsequent departmental correspondence including letter dated 01.06.2007 and RTI communications dated 12.04.2008/22.04.2008, it is submitted that the disciplinary proceedings and the impugned order of removal are vitiated for violation of the Railway Servants (Discipline and Appeal) Rules, 1968 and the principles of natural justice. Accordingly, the applicant respectfully prays that this Hon'ble Tribunal may be pleased to condone the delay, quash and set aside the charge-sheet dated 17.06.1999 and the impugned removal order/NIP dated 24.08.2004, direct the respondents to release all consequential service, pensionary and settlement benefits, including the unpaid PF and GIS dues, and grant such other relief as may be deemed just and proper in the facts and circumstances of the case.

We have heard the learned counsels of both sides and have also gone through their pleadings in details.

The applicant’s husband, Shri K.B. Pathrabe, was working as Sub-Divisional Treasurer, Farrukhabad, under the Cash and Pay Office, and while discharging his duties, certain financial irregularities were detected against him, including a shortage of Government funds amounting to Rs.55,509/- for which a chargesheet was issued to him on 17.06.1999. Sh. Pathrabe was on unauthorized absence from 21.08.99. The applicant i.e., his wife lodged a FIR regarding his missing/kidnapping on 27.10.01. On 23.12.01 however, in the final report submitted by the police authorities at Farrukhabad, the charge of kidnapping against the persons named in the FIR was dropped.

Meanwhile, enquiry on the chargesheet issued for misuse of Government funds proceeded ex-parte as in spite of number of letters issued by the IO to the charged officer, he did not appear and take part in the inquiry process. At the conclusion of the Inquiry, the charged officer was removed from service on 24.08.2004 and consequently no retiral dues except his provident fund and GIS were paid to him.

It is the case of the applicant that her husband has been missing since 21.08.99, information about which has been given by her to the office also. She also filed a FIR of missing/kidnapping against some persons who she thought could be involved in the kidnapping vide FIR No. 342 of 2001 dt. 27.10.2001. The fact that the official was missing/absent had all along been in the knowledge of office and has also been mentioned by the IO in the Inquiry Report dt 07.03.2002 where he mentions that the accused official did not take part in the Inquiry process and it is learnt that he is unauthorizedly absent/missing. The charged officer did not send any representation against the Inquiry report (since he was missing) and in its absence, the final punishment order of removal from service was also issued ex parte.

It is seen that from the papers submitted by the applicant that the disciplinary proceedings which were carried out ex-parte even after the knowledge in office about the fact that the official was missing also had many shortcomings. The officer who was made as IO in the case was also a witness in the case. Chargesheet was issued by a person who was not competent to do so. Inspite of the knowledge of unauthorized absence during the entire period of Inquiry, no action was taken against the unauthorized absence of the official.Since the official was missing/absent all along, a one sided inquiry was conducted and punishment of ‘removal from service’ was given.

In the letter written by the Dy.FA and Chief accounts officer dt. 30.05.2007 addressed to the ‘Pravar Mandal Vitt Prabandhak-Izzatnagar’, it has been clearly mentioned that after taking legal opinion in the case of Sh. Pathrabe, the FA&CAO has ordered that the case be processed as per Railway Board letter No. E(D&A)91RG6-41 dt 22.08.1991. However, the Varisht Mandal Vitt Prabandhak vide his letter dt 01.06.07 said that the letter dt 22.08.1991 is about people who are absent whereas Sh. Pathrabe’s case is about financial irregularity of Government funds. The letter also said that Sh. Pathrabe has not appealed against the order of Removal of service given by the Disciplinary authority and so his case cannot be considered as per the Railway Board letter dt. 22.08.1991.

It is seen that the disciplinary case of the applicant’s husband was processed and decided without following the principles of natural justice. No communication, be it the chargesheet or the various letters addressed to the charged officer to attend the Inquiry were ever received by the charged officer. The Inquiry officers have themselves said in their reports that the charged officer is unauthorizedly absent/missing. The Hon’ble Supreme Court in Union of India vs. Dinanath Shantaram Karekar, 1998(7)SCC 569dt 30.07.1998 has observed that:

Since in the present case, no official communication regarding the disciplinary proceeding was ever served on the charged officer, the entire proceedings were vitiated and the chargesheet deserves to be set aside.

Further, the Government servant had been missing and the information about the same was available in the office. However, no proceeding for unauthorized absence was ever initiated against the official and in spite of the recommendation for processing the case as per Railway Board’s letterNo.E(D&A)91RG6-41 dt 22.08.1991, the chargesheet for shortfall of money was finalized and the official was removed from service.

The Railway Board’sletter No. E(D&A)91RG6-41dt 22.08.1991(RBE No.150/91reads as follows:

Since, the official is stated to be missing for which FIR had also been lodged, the case should have been considered as a case of missing person and processed accordingly.

The applicant has also in her relief asked for appointment of her son to any suitable post. There is RBE No. 164/98 regarding compassionate appointment in the case of missing Railway employees also which is as follows:

Since the applicant’s husband had been tried for financial irregularities committed by him and the rule above specifies that the benefit of compassionate appointment to a Railway employee who is suspected of committing a fraud, even though the enquiry proceedings were vitiated, case for compassionate appointment is not made out..

In view of the above, the chargesheet given to the applicant’s husband is set aside and the Respondents are directed to process the case of the applicant for payment of retiral dues and family pension as per the Railway Board’s letter No. E(D&A)91RG6-41dt 22.08.1991(RBE No.150/91) within a period of four months from the receipt of this order.

The OA is disposed off with the above directions. All MAs, if any, are also disposed off. No order as to costs.